Her Majesty the Queen v. Watkins [Indexed as: R. v. Watkins]

51 O.R. (3d) 358

[2000] O.J. No. 4083

Docket No. C33019

Court of Appeal for Ontario

Osborne A.C.J.O., Doherty and Laskin JJ.A.

November 2, 2000

Professions -- Barristers and solicitors -- Contempt of court -- Lawyer cited for contempt after failing to appear with client at disposition hearing -- Trial judge excluding relevant evidence when he cut off attempt by lawyer to explain that he had arranged to have associate appear at disposition hearing -- Trial judge erred in taking into account past occasions on which lawyer or other members of his firm had failed to appear before him -- Lawyer's appeal from conviction for contempt of court allowed.

The appellant, a criminal lawyer, was representing a client on charges of failing to file tax returns. When the appellant was in the courthouse but not in the courtroom, Crown counsel advised the trial judge that she and the appellant had agreed that the matter should be remanded to allow the client to file the returns and that the Crown and defence would then present a joint submission as to sentence. The matter was adjourned, and the trial judge stated that the date set for the disposition hearing was peremptory. On that date, the client appeared without the appellant. No explanation was offered for the appellant's non-appearance. The trial judge cited the appellant for contempt and put the matter over. On the new date, the appellant stated that he was unaware that he had been cited for contempt but that he was prepared to proceed with a show cause hearing. He explained that he had asked an associate in his firm to appear in court for the disposition hearing. The trial judge stated that it did not matter what arrangements had been made as the appellant was on the record and no one appeared. He also took into account a course of conduct by the appellant's law firm over several months which, he believed, showed a disregard for the court and the proper administration of justice. He convicted the appellant of contempt of court. The appellant appealed.

Held, the appeal should be allowed.

Counsel's failure to appear before a court is not per se criminal contempt, although it may constitute criminal contempt in certain circumstances. There is a distinction between conduct which is discourteous or even unprofessional and conduct which is sufficiently egregious to warrant the stigma associated with a criminal conviction. The contempt power must be used sparingly, and the judge must ensure that the accused is fully cognizant of the nature of the alleged contempt from the outset of the show cause proceedings and is given a full opportunity to respond to the allegations.

The fault component of criminal contempt requires, at a minimum, that the accused show an indifference to his obligation to the court and his client. Steps taken by counsel to arrange for another lawyer in his firm to appear on his behalf are relevant to the question of whether counsel showed such an indifference. The trial judge in this case excluded relevant information by pre-empting the appellant's attempt to explain the steps he took to ensure that the client would be adequately represented at the disposition hearing.

The trial judge further erred in considering prior occasions on which the appellant and other members of his firm had failed to appear before him. By taking these earlier events into consideration, the trial judge significantly changed the nature of the contempt allegation against the appellant and raised the difficult question of whether the appellant could be found criminally liable for the failings of other members of his firm. The appellant should have been advised of the specific non-appearances that the trial judge had in mind and should have been given an opportunity to address the particulars of those non-appearances and his responsibility for them.

APPEAL from a conviction for contempt of court.

Cases referred to R. v. Anders (1982), 1982 3320 (ON CA), 136 D.L.R. (3d) 316, 67 C.C.C. (2d) 138 (Ont. C.A.); R. v. Danson (1981), 1981 3310 (ON CA), 57 C.C.C. (2d) 519 (Ont. C.A.); R. v. Glasner (1994), 1994 3444 (ON CA), 19 O.R. (3d) 739, 119 D.L.R. (4th) 113, 93 C.C.C. (3d) 226, 34 C.R. (4th) 243 (C.A.); R. v. Jones (1978), 1978 2466 (ON CA), 42 C.C.C. (2d) 192 (Ont. C.A.); R. v. Kopyto (No. 1) (1981), 1981 1899 (ON CA), 32 O.R. (2d) 585, 122 D.L.R. (3d) 260, 60 C.C.C. (2d) 85, 21 C.R. (3d) 276 (C.A.)

Timothy Breen, for appellant. Roger A. Pinnock, for respondent.

By the Court: --

I.

[1] The appellant was convicted of contempt of court by Justice Ronald B. Lester and fined $1,000. He was also required to pay $200 to his client for costs "thrown away". He appeals from that conviction.

[2] The appellant, a criminal lawyer in Thunder Bay, acted for Terry Brady on charges of failing to file tax returns. Those charges were spoken to before Justice Lester on August 26, 1999. The appellant was in the courthouse but not in the courtroom. Crown counsel advised the trial judge that she and the appellant had agreed that the matter should be remanded for a short time to allow Mr. Brady to file the necessary returns, and that subject to those returns being filed, the Crown and defence would present a joint submission as to the appropriate disposition. The trial judge adjourned the matter to September 15. Crown counsel indicated that it would be disposed of on that date. Justice Lester said:

That's peremptory for disposition. It's got to be done on that day, no more remands, okay. . . .

[3] Mr. Brady was present in court on September 15 when his case was called but the appellant was not in the courthouse. Mr. Brady told the judge that he had anticipated that the appellant would be in court that day. No explanation was offered by anyone for the appellant's non-attendance and no one from the appellant's firm appeared for Mr. Brady.

[4] Justice Lester said:

Okay. Mr. Watkins will be cited for contempt. I'll have to give you another date. This is peremptory today which means no further remands. Mr. Watkins knows what that means. He was here when it was made peremptory and I'm told that he took a trial in another court after he already had this booked so we will be having the hearing for Mr. Watkins as to why he shouldn't be held in contempt of court and I'll put your matter over. . . .

(Emphasis added)

[5] Justice Lester was mistaken in his belief that the appellant was present when the case was adjourned. He was not present at the proceedings on August 26. He was, however, aware that the case had been adjourned to September 15.

[6] Justice Lester put the matter over to September 20. On September 20, Mr. Brady appeared with the appellant. Mr. Brady pleaded guilty to two charges and the appellant and the Crown presented a joint submission. The trial judge accepted the joint submission, convicted Mr. Brady on two charges of failing to file tax returns and imposed the minimum fines.

[7] Justice Lester then turned his attention to the appellant. He indicated that on the previous date (September 15), neither the appellant nor anyone from his firm had been present when the case was called. He observed that Mr. Brady had been anxious to have the charges dealt with on September 15, and told the appellant that he would be required to show cause why he should not be held in contempt. The appellant said that he was not aware that he had actually been cited for contempt on September 15. Justice Lester offered to adjourn the show cause hearing, but the appellant said that he was "prepared to deal with the matter today".

[8] The appellant tried to explain his failure to appear on September 15. He advised Justice Lester that he had agreed to a disposition with the Crown some time before that date and that Mr. Brady was agreeable to that disposition. When the appellant realized that he would be unable to attend court on September 15 because of an ongoing jury trial, he met with Mr. Woods, an associate in his firm, on the evening of September 14. He told Mr. Woods about the arrangement that had been made with the Crown, and instructed him to appear on Mr. Brady's behalf before Justice Lester on September 15. Mr. Watkins did not contact Mr. Brady to tell him that he would not be in court on September 15, and did not find out whether Mr. Brady was agreeable to being represented by Mr. Woods.

[9] Justice Lester said that he had spoken to Mr. Woods on September 15 after he had adjourned the Brady matter and that Mr. Woods knew nothing about the case. This was obviously contrary to the appellant's understanding. When the appellant attempted to further explain the arrangements he had made for Mr. Woods to appear for Mr. Brady, Justice Lester interjected and said:

. . . It doesn't matter who spoke to who in the office. It is your job, you are on the record. Nobody was here. That is the fifth time this summer that I can think about involving your office . . .

[10] This comment made it clear that Justice Lester was concerned not just with Mr. Watkins' failure to appear on September 15, but with a course of conduct by the appellant's firm over several months which, in his opinion, showed a disregard for the court and the proper administration of justice. Justice Lester's closing words make the basis for the contempt conviction abundantly clear:

. . . Your firm, Mr. Watkins, if you will allow me to say so is out of control. This is the fifth time, the fifth time this summer alone that your firm has to answer for similar problem[s]. Fifth time. It has to stop.

II.

[11] The applicable legal principles in contempt cases involving counsel's failure to appear before a court have been set out in many decisions of this court and need not be repeated here: see R. v. Glasner (1994), 1994 3444 (ON CA), 19 O.R. (3d) 739, 93 C.C.C. (3d) 226 (C.A.); R. v. Anders (1982), 1982 3320 (ON CA), 136 D.L.R. (3d) 316, 67 C.C.C. (2d) 138 at p. 157 (Ont. C.A.); R. v. Danson (1981), 1981 3310 (ON CA), 57 C.C.C. (2d) 519 (Ont. C.A.); R. v. Kopyto (No. 1) (1981), 1981 1899 (ON CA), 32 O.R. (2d) 585, 60 C.C.C. (2d) 85 (C.A.); R. v. Jones (1978), 1978 2466 (ON CA), 42 C.C.C. (2d) 192 (Ont. C.A.).

[12] These cases establish that counsel's failure to appear is not per se criminal contempt but may constitute criminal contempt in certain circumstances. They also distinguish between conduct which is discourteous or even unprofessional and conduct which is sufficiently egregious to warrant the stigma associated with a criminal conviction. Finally, these cases make it clear that the contempt power must be used sparingly. When it is used, judges who find themselves in the unique and difficult position of prosecutor, witness and judge must sedulously protect the fairness of the proceedings. In doing so, the judge must ensure that the accused is fully cognizant of the nature of the alleged contempt from the outset of the show cause proceedings and is given a full opportunity to respond to the allegations.

III.

[13] We appreciate Justice Lester's concerns and accept without reservation his right to call the appellant to task for his non-appearance and the failure of his firm to honour its commitments to the court. There were various ways Justice Lester could have voiced his concerns. He chose to do so by invoking the criminal contempt power. In doing so, he was obliged to conform to the high procedural standards associated with that process.

[14] Unfortunately, Justice Lester failed to meet those standards in two ways. First, by pre-empting the appellant's attempt to explain the steps he took to ensure that Mr. Brady would be adequately represented on September 15, Justice Lester excluded relevant evidence. The fault component of criminal contempt requires, at a minimum, that the accused show "an indifference to his obligation to the court and to the client": R. v. Glasner, supra, at p. 244 [C.C.C., citing R. v. Danson, which in turn cites R. v. Jones]. Steps taken by counsel to arrange for another lawyer in his firm to appear on his behalf so that the matter could proceed as scheduled are relevant to the question of whether that lawyer showed an indifference to his obligations to the court and his client.

[15] We cannot accept Mr. Pinnock's submission that the appellant's failure to obtain Mr. Brady's consent to Mr. Woods acting for him necessarily compelled the conclusion that the appellant's failure to appear constituted a criminal contempt regardless of the arrangements he made for Mr. Brady's representation. Clearly, the appellant should have obtained Mr. Brady's consent. However, his failure to do so was only one factor to be considered in deciding whether the appellant was in contempt of court. If Justice Lester considered Mr. Brady's willingness to be represented by Mr. Woods as important in the contempt proceedings, he could have made the necessary inquiries to determine whether Mr. Brady would have proceeded with Mr. Woods. Given the minor nature of the charges, the minimum penalty involved, and Mr. Brady's prior agreement to the joint submission, it is quite possible that Mr. Brady would have been content with representation by Mr. Woods on September 15.

[16] Justice Lester should have allowed the appellant to fully explain the steps he took to arrange for Mr. Brady's representation on September 15 and, if necessary, to lead evidence from Mr. Brady as to his willingness to be represented by Mr. Woods on September 15.

[17] The second error arises out of Justice Lester's consideration of prior occasions on which the appellant and other members of his firm had failed to appear before him. By taking these earlier events into consideration, Justice Lester significantly changed the nature of the contempt allegation against the appellant. The appellant's liability no longer turned on whether his failure to appear on September 15 in and of itself constituted criminal contempt, but instead depended on whether his firm's course of conduct over the summer, culminating in the non-appearance on September 15, warranted a finding of criminal contempt.

[18] By expanding the contempt allegation, Justice Lester raised the difficult question of whether the appellant could be found criminally liable for the failings of other members of his firm. Apart entirely from this substantive concern, procedural fairness demanded that Justice Lester tell the appellant at the outset of the show cause hearing that the contempt allegation involved prior non-appearances and not simply the appellant's failure to appear on September 15. The appellant should have been advised of the specific non- appearances that Justice Lester had in mind. He should also have been given an opportunity to address the particulars of those non-appearances and his responsibility for them.

IV.

[19] The two errors set out above necessitate the quashing of the conviction. A new trial would normally be the appropriate disposition. The appellant has, however, filed extensive affidavit evidence setting out the steps he took to ensure that Mr. Brady would be represented on September 15. That material indicates that Mr. Woods was in the courthouse on September 15 and was prepared to represent Mr. Brady. Unfortunately, Mr. Woods was not advised that Mr. Brady's case had been called in Justice Lester's courtroom until after the judge had adjourned the case. The affidavit material also speaks to the prior non- appearances by members of the appellant's firm. The Crown has not challenged the veracity of any of this affidavit material. Based on that material, it cannot be said that the appellant's failure to appear on September 15, either standing alone or considered in combination with the prior non- appearances, amounted to criminal contempt. There is no point in ordering a new trial.

[20] The appeal is allowed, the conviction is quashed, and an acquittal is entered.

Appeal allowed.